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British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

The Employment Standards Act Applies, Regardless

Posted in Employment Standards
Christopher McHardy

Most employees are covered by the Employment Standards Act (British Columbia). There are only limited exclusions of professionals and some employees in job creation or training programs.

It is not possible to “contract out” of the Act.  The Act applies regardless of the wishes of the employer and the employee.  The Act creates minimum terms and any agreement to waive the benefit of the Act is of no effect.  (The effect of the Act on collective agreements will be considered in a future post.)

Watch out for

  • the agreeable employee: he will waive overtime pay if he gets some additional shifts;
  • the flexible employee: she likes to work some extra hours on some days and leave earlier on others;
  • the employee who performs two different functions: she works as wait staff during the evenings and does marketing during the day; and
  • “contractors”: who are really employees and are therefore entitled to overtime, vacation pay and the other benefits of the Act.

Possible Solutions

  • If the regular work day and week are less than 8 and 40 hours, extra hours worked up to those limits can be paid at straight time, with agreement.
  • Averaging agreements may be used to permit an employee to work longer hours in a particular time period without the necessity to pay overtime (provided a written agreement is entered into in accordance with the provisions of section 37 of the Act).
  • It may be possible to change duties or the way work is performed to bring the employee into the exemptions from the hours of work provisions (which are listed in Part 7 of the Regulation).